The main legal point established in the judgment is that recovery of arrears of excise duty from the legal heirs of a deceased petitioner, who had contested the demands as illegal and malafide, is not permissible under the law.

Ajay Kumar Mittal, J.

1. Prayer in this petition under Articles 226/227 of the Constitution of India is for quashing the various certificates issued by respondent No.2 qua the petitioner for realisation of Arrears of Excise Duty, Additional Excise Duty and Penalty if any.

2. A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner – Nobat Singh (since deceased) was a freedom fighter who remained in various jails for a period of about seven and a half years during the freedom struggle of the nation. In the year 1969, he started the business of curing of tobacco leaves but the same had to be closed within about a year because of constant and uncalled for interference and demands of illegal gratification by the officials of the department of Central Excise. He filed a complaint to the Director General, Central Bureau of Investigation against Shri S.K.Khanna, Excise Inspector in May 1969. On May 20, 1969, a raid was conducted and the said Shri S.K. Khanna was caught red handed while accepting an illegal gratification of Rs. 200/-. This exemplary and praiseworthy act of the petitioner antagonised various officials of the department who became his enemies. Under these circumstances, he had to close his business. On one occasion, in the absence of the petitioner, the officials of the department impounded about 1000 maunds of tobacco leaves stocked in his various godowns and took his entire stock away alongwith the account books and other documents. On enquiring from the department, the petitioner was told that the stock was impounded for realising the arrears of excise duty due towards him. The total value of uncured tobacco leaves and 3000 gunny bags in which the same were kept at the rates then prevailing was about Rs. 1,80,000/-. The petitioner protested before the authorities that there was nothing due against him by way of excise duty or additional excise duty or by way of penalty. On 4.9.1991, a Peon from the office of Tehsildar came to the residence of the petitioner and informed him that the Tehsildar wanted to see him immediately. On going to the Tehsil office, the petitioner was shown the impugned letter written by Superintendent, Central Excise, Bhiwani dated 30.3.1990 addressed to the Collector, Bhiwani. The letter directed the Collector to initiate proceedings for recovery of alleged arrears of excise duty etc. As per details provided in the letter, an amount of Rs. 1,60,271/51 paise was to be recovered from the petitioner. Relying upon Sections 11 and 11A of the Central Excise and Salt Act, 1944, (in short, “the 1944 Act”) the petitioner submitted that the directions were illegal, malafide and against the principles of natural justice and fairplay. As per Section 11A of the 1944 Act, a notice has to be served within six months of the relevant date. According to the petitioner, no notice was ever served upon him within the specified period of six months or even thereafter at any time. No proceedings were ever initiated within the prescribed period of six months. Hence the instant petition by the petitioner.

3. A written statement was filed on behalf of the respondents by Shir SC Gulati, Central Excise Division, Rohtak. It was inter alia stated that the petitioner had a remedy of filing an appeal against the adjudication orders under Section 35 of the 1944 Act. Show cause notices were sent to the petitioner. He even submitted replies and was heard in person. On these premises, prayer for dismissal of the petition has been made.

4. Replication to the written statement was filed by the petitioner controverting the averments made therein and reiterating the averments made in the writ petition.

5. We have heard learned counsel for the parties.

6. At the outset, learned counsel for the petitioner submitted that the petitioner - Nobat Singh had died on 12.12.2000 during the pendency of the writ petition and, therefore, in the absence of machinery provisions